Once, in the era of coverture, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Under coverture, a married woman had no legal persona—she could not sue or be sued, she could not form contracts, and she could not buy, sell, or own property apart from her husband. Gender hierarchy, separate spheres, and marital “unity” defined coverture and its rules.

Today, the prevailing narrative is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change. Coverture, for Justice Kennedy, exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. Coverture therefore provides an important example of how “[t]he history of marriage is one of both continuity and change.”

While celebrating the demise of coverture, however, the substantive image of marriage that Justice Kennedy set forth in the opinion subconsciously invokes marriage as coverture. The opinion uses conventional, historical tropes that construct marriage as a relationship of hierarchy, gender differentiation, and female disempowerment. While ostensibly rejecting old forms of marriage and setting forth a modern vision of marriage equality, the opinion subtly resurrects the presence of coverture.

The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic partnership—in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes.

Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse’s contributions to the other spouse’s career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex “hybrid” cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of “pre-marital” property in order to count assets and income acquired outside of the marriage itself.

Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage.

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage.Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.

On Friday, August 7, the Ohio Supreme Court's Board of Professional Conduct issued an opinion entitled "Judicial Performance of Civil Marriages of Same-Sex Couples." The Board ruled:

A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not delcine to perform all marriages in order to avoid marrying same-sex couples based on his or personal, moral, or religious beliefs.

The Board of Professional Conduct is a 28-member body appointed by the Supreme Court of Ohio. It consists of 17 lawyers, seven judges, and four non-lawyers. One of the Board's duties is to issue advisory opinions on matters of attorney and judicial ethics. The Board does not issue a lot of opinions. In each of 2013 and 2014 it issued only four advisory opinions; in 2012 it issued three. The Board's recent opinion regarding a judge's duty to perform same-sex marriages was its first advisory opinion of 2015.

The Ohio Board of Professional Conduct does not have the power to interpret the law. It only has the authority to construe the various rules and ethical codes that govern the conduct of judges. However, those ethical rules require judges to perform their duties under the law impartially. The Board noted that the United States Supreme Court ruled in Obergefell v. Hodges that under the Constitution same-sex couples have the same right to marry as opposite-sex couples, and that this is therefore the law of the land. If a judge were to refuse to perform same-sex marriages it would be evidence of bias and prejudice that could disqualify a judge from deciding any case involving same-sex couples or sexual orientation. The Board said that the same would be true if a judge refused to perform any marriages at all after Obergefell; this too would be evidence of bias and prejudice.

Nancy Reeves acknowledged there aren’t many “tangible benefits” to adoption at this point, but it’s not any less meaningful.

“We have always been a family. We have always known it, and everyone who matters to us on a personal level has always treated us as a family,” she said.

“That said, when society tells you that you’re not a real family, when ‘family values’ expressly devalues your family, it is almost indescribable to finally have our 34-year marriage, and Lynn’s 25-year relationship with Emma legally recognized. It is as if a weight I didn’t even know I was carrying has been lifted off my shoulders,” Reeves said.

The Supreme Court was definitive in its decision to legalize gay marriage nationwide, but what is far from clear is whether U.S. companies must offer corporate benefits to same-sex spouses.

Many large and mid-sized employers are self-insured, which means their benefits are governed by a 1974 act that has no language on preventing discrimination based on sexual orientation.

The Employee Retirement Income Security Act allows companies to bypass differing state laws that complicate healthcare options for employees spread out across the country.

In a Reuters survey of 60 large U.S. employers, nearly half said they were already providing benefits to same-sex spouses before the Supreme Court ruling last month, including 13 that are based in states where gay marriage was illegal.

While benefits experts see many more companies moving in that direction, the lack of legal clarity could lead to some notable holdouts that will test the spirit of the gay marriage ruling.

“This is a great decision by the Supreme Court, but people are wrong in thinking that the struggle is over and that nothing is left in the ability to discriminate, because it’s still there,” said Robert Louis, a senior partner who represents plaintiffs at Saul Ewing LLP in Philadelphia on employee benefits issues.

While ERISA requires companies to comply with federal law that protects employees against discrimination based on race, gender or religion, there is no language preventing discrimination based on sexual orientation. The act itself does not specifically address same-sex marriage.

“ERISA was enacted in the 1970s, and I don’t think it contemplated anything of that nature,” said Annette Guarisco Fildes, chief executive of the ERISA Industry Committee, which represents self-insured employers. She expects many self-insured employers will ultimately provide the same benefits to same-sex spouses as they do for heterosexual couples.

Tracy Thomas, associate dean of The University of Akron School of Law said she believes that Kennedy’s opinion answered Roberts’s objections. In particular, she praised Kennedy for going beyond Loving to examine other right-to-marry cases, particularly Zablocki.

“Zablocki is key,” she said. “It’s an underrated case” in that the law at issue does not absolutely prohibit marriage, places conditions on the timing of the plaintiff’s marriage.

Thomas said Zablocki also considers due process and equal protection claims in tandem as Kennedy does in the decision.

Thomas, who teaches family law and directs the Constitutional Law Center at the School of Law, faulted Roberts for his characterization of Loving. Contrary to Roberts’s characterization, she said she finds that the states maintaining anti-miscegenation laws at the time of Loving regarded marriage restricted to one’s race as fundamental to the definition of the institution as marriage being between a man and a woman.

Thomas also noted that Roberts argues that marriage has for millennia been defined as one man and one woman, ignoring the persistent reality of polygamy.

Justice Kennedy’s opinion treats equal protection as “connected in a profound way” to substantive due process, she said, adding that he does not engage in traditional equal protection analysis, determining whether the plaintiffs fall into a suspect class and identifying a standard of review.

On the other hand, she said, at two places in the opinion, Kennedy refers to same-sex attraction as an immutable trait, which generally serves as a starting point for determining whether a group is a suspect class.

According to Thomas, the lack of detail regarding equal protection is consistent with how Kennedy has been approaching marriage equality cases.

“This is a marriage issue for him not a same sex issue,” she said, adding, “at least since Windsor, it’s where Kennedy is coming from.”

I find myself increasingly disappointed in Kennedy’s articulation of the right to same-sex marriage. Not because I don’t appreciate the way he discussed marriage as a fundamental right crucial to the dignity of gay and lesbian individuals, but because he doesn’t locate a woman’s right to reproductive autonomy in that same sphere of dignity. ***

When it comes to women reserving dignity for themselves—the dignity to make the most personal choice—whether or not to have children—Kennedy has devolved into patriarchal notions about women’s frailty and inconstancy, with language steeped in stereotypes and gender-normative claptrap.

However useful Kennedy finds it for expanding constitutional protections for certain rights, dignity is a gendered double-edged sword. It’s great for men and it has turned out to be great for same-sex couples who want to get married. But dignity as a concept is worthless when it comes to reproductive rights.

In her article, “Aborting Dignity: The Abortion Doctrine After Gonzales v. Carhart,” Victoria Baranetsky examined the limitations of dignity as a useful constitutional principle, and describes its dual meaning. She wrote, “Dignity has two radically different meanings: femininesocial obligation and masculine autonomy.” (Emphases in original.)

This is the question that all law professors, lawyers, and journalists seem fixated on after the Supreme Court's same-sex marriage decision in Obergefell. The emerging conclusion seems to be that Kennedy relied on dubious reasoning in analyzing the due process and equal protection claims.

To me, Kennedy answers the scrutiny question by the precedents he cites. In short, Zablocki. Zablocki was a case where groups were treated differently -- unmarried fathers behind on child support with children on welfare v. everyone else. So a classification problem that equal protection would address. But the classification basis was not just deadbeat Dads, but one group with a fundamental right and the other without. There was an interrelationship, what Kennedy calls "synergy" between the equal protection problem and the due process problem. In that case, the Court applied strict scrutiny. Although admittedly it went through a detailed analysis of the asserted state interests and their connection to the manner of regulation.

Kennedy concludes twice simply that the gay marriage bans were "unjustified." He addresses the asserted interests of deference to the democratic process, harm to straight marriage, and religion. He discounts these interests finding no harm to either marriage or religion, and religion still protected by the First Amendment. He also denies that deference to legislative processes has not been done, noting that there has in fact been significant caution and deference to the democratic process of 12+ years. He also seems to balances that interest against the harms to plaintiffs from delay. The Court engaged in a similar conclusory analysis in Loving, summarily rejecting the state's interest in white supremacy as not important or even rational.

Kennedy did circle round the question of judicial scrutiny, but he was answering a different question that advocates wanted him to answer. To Kennedy this was a marriage case, not a gay rights case. He carefully went through all of the Court's marriage precedents like a Family Law exam-- Maynard, Loving, Turner, Zablocki, even Williams -- to construct his analysis of marriage and the denial of what he described as a sacred right. He does twice mention sexual orientation as "immutable" thus providing dicta to support the next case seeking heightened scrutiny for sexual orientation discrimination.

By now you’ve heard that the Supreme Court decided Obergefell v. Hodges holding that there is a fundamental right to marry for same-sex partners.

I'm guessing that Ginsburg influenced or wrote the sections analogizing to coverture. The majority opinion uses coverture as an example of legal evolution in the structure of marriage. It cites some of attorney-Ginsburg’s equal protection cases as well.

The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000); S. Coontz, Marriage, A History 15–16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Cite as: 576 U. S. ____ (2015) 7 Opinion of the Court Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000). Obergefell, 6-7.

and

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of cover- Cite as: 576 U. S. ____ (2015) 21 Opinion of the Court ture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 (1980); Califano v. Westcott, 443 U. S. 76 (1979); Orr v. Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution. Obergefell, 20-21.

Justice Roberts in dissent also refers to coverture, denying that legal reforms worked a transformation in the structure of marriage.

As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. 8 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting Loving, 388 U. S., at 6–7. The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6

I bet if you asked a woman on the street, she would have understood marriage as coverture.

“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

That theory had gotten only slight attention in scores of lawsuits challenging bans on same-sex marriage, and it is unlikely to serve as the central rationale if a majority of the court votes to strike down such bans, an opinion likely to be written by Justice Anthony M. Kennedy.

But it could allow Chief Justice Roberts to be part of a 6-to-3 decision, maintaining some control over the court he leads and avoiding accusations from gay rights groups that he was on the wrong side of history.

"This would be a clean, formalistic way for the court to resolve the case,” Andrew Koppelman, a law professor at Northwestern University, said in an interview. “It could just apply existing sex discrimination law.”

Professor Koppelman and other scholars filed a brief urging the court to strike down the four same-sex marriage bans before it on sex-discrimination grounds. The chief justice’s musings were similar to a passage in the brief.

This Loving argument appeared in some of the first cases of same-sex marriage in Hawaii and Alaska. More recent decisions, however, have rejected this gender argument because the state's intent or animus is not directed at sex - either men or women, in the way that inter-racial bans were directed at blacks and Asians. With a disconnect between the law's classification and the intent, courts have found no sex-based discrimination.

What might help get at the sex-based intent/animus argument is the rationales same-sex marriage opponents make about the need for two different gender parents, i.e. the need for a nurturing-type parent of the woman or in the case of lesbians the need for a disciplinarian of the father. This stereotypical typecasting gets closer to seeing a nexus between classification and intent sufficient to strike down same-sex marriage bans as sex discrimination.

1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, the then-top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.

The U.S. Supreme Court hears legal arguments next week in the legal battle over same-sex marriage. It's an extraordinarily high-stakes clash, but the men and women at the center of it see themselves as incredibly ordinary. The 12 couples and two widowers include doctors, lawyers, an Army sergeant, nurses and teachers.

Most have children and lead the typically harried lives of working parents. They say they didn't set out to be pioneers. They consider themselves "accidental activists," meaning they filed lawsuits not to further a cause but because of the way the bans affected their lives.

It is startling to think that in Glendale, Arizona a person can be evicted from their home or fired from their job simply because of whom they love or their gender identity. In Glendale, LGBT citizens still lack basic legal protections at work, at home and in public spaces.

And:

The Glendale City Council started the process of protecting LGBT residents with a non-discrimination ordinance, however the process has stalled.

The momentum continues to build among Glendale residents- LGBT and allies alike. Supporters are anxious to ensure that discrimination based on sexual orientation or gender identity not be tolerated.

Last week, HRC hosted a phone bank to encourage Glendale residents to call the Mayor and City Council to get the ordinance back on track. Conversations with residents reinforced the need to move this ordinance forward and make sure that all Glendale citizens are equally treated under the law.

The first page of a petition seeking Supreme Court review is the most important. It sets out the “question presented,” the one the court will answer if it takes the case.

The justices do not ordinarily tinker with the wording of those questions. But on Friday something unusual happened: In agreeing to hear four same-sex marriagecases, the court framed for itself the issues it would address.

Lawyers and scholars scrutinized the court’s order with the anxious intensity of hypochondriacs attending their symptoms. Some saw an attempt by Chief Justice John G. Roberts Jr. to elicit a ruling that would stop short of establishing a nationwide constitutional right to same-sex marriage.

The court’s order was not issued until 3:30 in the afternoon, long after the justices’ private morning conference concluded. That suggested the drafting had taken some time and had involved some negotiation.

Richard L. Hasen, a law professor at the University of California, Irvine, did not like what he saw. Has the Supreme Court “stacked the deck against gay marriage in how it has framed the question?” he asked in a blog post.

But there are perfectly innocuous explanations for the court’s new questions. It agreed to hear four different petitions, from Kentucky, Michigan, Ohio and Tennessee, and they featured different questions, which needed to be harmonized since the cases were consolidated.

“The court’s order represents good housekeeping,” said Laurence H. Tribe, a law professor at Harvard.

But Professor Tribe also voiced a small note of caution.

“The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”

Helen Alvare at George Mason Law has uploaded "Same-Sex Marriage and the Reconceiving of 'Children.'" (It's a conservative perspective but I, for one, am in favor of reading contrary views.) The abstract:

Historically, the U.S. Supreme Court has consistently highlighted the importance of procreation in its consideration of marriage in constitutional cases. Recently, however, litigants seeking same-sex marriage and judicial decisions sympathetic to their arguments have ignored the language and holdings of this long-standing body of law. Instead, they have focused nearly entirely upon adults’ interests in state marriage recognition. To the extent children are mentioned, it is for the purpose of speculating that children living within same-sex marriage households might indirectly benefit from recognition of adults’ rights to same-sex marriage.

This Article discusses the importance of states’ interests in procreation and child rearing and the Supreme Court’s constant recognition of those interests. Ultimately, this Article argues that judicial decisions recognizing same-sex marriage have marginalized, or “reconceived,” the role of children in marriage, in several important ways, all to the marked disadvantage of children.

The majority of Mississippians disapprove of same-sex marriage. They have made that abundantly clear through every channel in which popular opinion can be voiced. This court does not believe that the 86% of Mississippians who voted against same-sex marriage in 2004 did so with malice, bigotry, or hatred in their hearts. Many were simply trying to preserve their view of what a marriage should be, whether by religion or tradition. They deserve an explanation as to why same-sex marriage is now sweeping the country.

It has become clear to the court that people marry for a number of reasons: marriage is a profound source of emotional support; marriage is a private and public expression of commitment; some marry in exercise of their religious beliefs; some do so because it opens the door to economic and government benefits; there are those who marry to present a certain status or image; and others do it for the noble purpose of legitimizing their children. In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions:

Can gay and lesbian citizens love?

Can gay and lesbian citizens have long-lasting and committed relationships?

Can gay and lesbian citizens love and care for children?

Can gay and lesbian citizens provide what is best for their children?

Can gay and lesbian citizens help make their children good and productive citizens?

Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity?

Without the right to marry, are gay and lesbian citizens subjected to state-sanctionedprejudice?

Answering “Yes” to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage. The court concludes that Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law.

Linda McClain at Balkinization on the Puerto Rico same-sex marriage decision and the gendered origins of "traditional marriage."

Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality.

To illustrate the consistency of Puerto Rico’s marriage policy, the federal district court observes that, in 1899, when “royal decree brought Puerto Rico within the ambit of the Spanish Civil Code,” that Code governed marriage and the “rights and obligations of husband and wife.” The court traces Puerto Rico path to becoming a “possession” of the United States, observing that the underlying definition of marriage did not change. Thus, marriage, in the 1902 Civil Code, is “ a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife, and to fulfill for one another all the duties that the law imposes.”

But what were those duties imposed by law? The court attaches to its opinion a translation of an excerpt from the 1899 Civil Code, which include certain “rights and responsibilities” of husband and wife: “The husband must protect his wife and the latter obey the husband.” (Art. 57); “The wife is obliged to follow her husband wherever he may establish his residence” (Art. 58); “The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through a solicitor” (Art. 60). The husband is also “the administrator of the property of the conjugal partnership,” unless otherwise stipulated (Art. 59).

These provisions of the Civil Code, rooted in Spanish influence, have parallels in the English common law system of coverture, a system that, as the Supreme Court explained in Planned Parenthood v. Casey, is “no longer consistent with our understandings of the family, the individual, or the Constitution.” Challenging the idea of a consistent marriage policy is the fact that these hierarchical provisions no longer appear in the current version of the Civil Code. Instead, the “duties” of spouses “imposed by law” now take a mutual, gender neutral form: “The spouses shall protect themselves and satisfy their needs in proportion to their conditions and fortune” (Section 282); “The spouses shall decide by mutual agreement where to establish their domicile and residence for the attainment of the best interest of the family” (Section 283); “Both spouses shall be administrators of the community property, except when otherwise stipulated . . .” (Section 284); and “[E]ither of the spouses may legally represent the conjugal community” (Section 286).

These changes are similar to the abrogation of the common law model of marriage. They show how the law of marriage evolves over time. Thus, the “traditional marriage” to which Judge Juan M. Pérez-Giménez appeals has already departed in many ways from “tradition.

The fate of same-sex marriage bans could come down to the 6th Circuit, according to Ruth Bader Ginsburg. The Supreme Court justice told an audience at the University of Minnesota on Tuesday that whether the high court will take up the issue of marriage equality in the coming term will likely depend on a pending ruling from the appellate court, the Associated Press reports:

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”

Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow opposite-sex marriage while banning same-sex marriage — even if the ban triggers heightened scrutiny under equal protection or due process — because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.

The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase in challenges to same-sex marriage bans. For example, it appeared in multiple amicus briefs in United States v. Windsor, as well as in various filings in challenges to Utah's same-sex marriage ban in the Tenth Circuit and Kentucky's same-sex marriage ban in the Sixth Circuit.

Despite this newfound popularity, the gender diversity argument fails for a number of reasons. It erroneously conflates sex and gender, impermissibly relies on sex and gender stereotyping, lacks credible empirical support, draws untenable analogies, runs afoul of well-established doctrine, and, taken to its logical conclusion, leads to a inexorably to a number of consequences that are either universally undesirable or that we are fairly certain its proponents do not support. In short, we think the argument wholly unsuccessful, and urge courts not to entertain it.